Qualified Immunity

Jonathan H. Adler | 9.12.2024 9:42 PM

In Josephson v. Ganzel, a unanimous panel of the U.S. Court of Appeals for the Sixth Circuit affirmed a district court's denial of sovereign immunity and qualified immunity to public university officials who allegedly took adverse employment actions against a professor who expressed skepticism about certain treatments for youth diagnosed with gender dysphoria.

Judge Mathis wrote for the panel, joined by Senior Judge Gilman and Judge Griffith. His opinion begins:

The First Amendment protects popular and unpopular speech alike. Allan Josephson worked as a professor of psychiatry at a public university's medical school. After developing an interest in the medical treatment of childhood gender dysphoria, he began publicly discussing his views on that topic. In October 2017, he expressed his thoughts on treating childhood gender dysphoria during a panel discussion sponsored by a conservative think tank. His commentary was unpopular with his coworkers and supervisors. Josephson believes that his superiors retaliated against him for the views he expressed during the panel discussion, ultimately culminating in the nonrenewal of his contract with the university after more than fifteen years of employment. So he sued the individuals that he says violated the First Amendment by retaliating against him.

The defendants argue that they are entitled to Eleventh Amendment immunity and qualified immunity. The district court disagreed, and so do we. For the reasons explained below, we affirm.

Dr. Josephson was a psychiatrist and a member of the faculty at the University of Louisville School of Medicine in the Department of Pediatrics. He participated in a panel sponsored by the Heritage Foundation on gender dysphoria in children. During this panel, he expressed his opinion that "gender dysphoria is a socio-cultural, psychological phenomenon that cannot be fully addressed with drugs and surgery.........

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